In his discussion of this amendment and its protection of unenumerated rights, Kavanaugh said that "an example of that is the old Pierce case where Oregon passed a law that said everyone in the state – this is in the 1920s – everyone in the state of Oregon had to attend, every student had to attend, a public school. A challenge was brought by parents who wanted to send their children to a parochial school, a religious school. The Supreme Court upheld the rights of the parents to send their children to a religious parochial school and struck down that Oregon law. That's one of the foundations of the unenumerated rights."
Since Kavanaugh had mentioned religious liberty, Cruz then asked about his views on the importance of religious liberty and how the Constitution protects it.
"To begin with," Kavanaugh answered, "it's important in the original Constitution; even before the Bill of Rights, the framers made clear in article six, 'no religious test shall ever be required as a qualification to any office or public trust under the United States'. So that was very important, in the original Constitution, that the framers thought it very important that there not be a test to become a legislator, to become an executive branch official, to become a judge … the framers understood the importance of protecting conscience, it's akin to the free speech protection in many ways … If you have religious beliefs, religious people, religious speech, you have just as much right to be in the public square, and to participate in the public programs, as others do."
"In other countries around the world," he said, "you're not free to take your religion into the public square." He cited crosses being knocked off of churches in mainland China, and that "you can only practice in your own home, you can't practice, you can't bring your religious belief into the public square. And being able to participate in the public square is a part of the American tradition. I think as a religious person, religious speech, religious ideas, religious thoughts, that's important."
Kavanaugh noted that the Supreme Court precedent has recognized that "some religious traditions in governmental practices are rooted sufficiently in history and tradition to be upheld … so the religious tradition reflected in the First Amendment is a foundational part of American liberty. And it's important for us as judges to recognize that and not – and recognize too that, as with speech, unpopular religions are protected."
Cruz asked, of the free exercise and establishment clauses, "are they at cross purposes and intention are or they complimentary of each other?"
Kavanaugh answered that "I think in general it's good to think of them as both supporting the concept of freedom of religion … to begin with you're equally American no matter what religion you are, if you're no religion at all. That it's also important, the Supreme Court has said, that religious people be allowed to speak and participate in the public square without having to sacrifice their religion in speaking in the public square, for example, or practicing their religion in the public square. At the same time, I think both clauses protect the idea, or protect against, coercing people into practicing a religion when they might be of a different religion or might be of no religion at all. So the coercion idea, I think, comes out of both clauses as well … I think it's good to think of the two clauses working together for the concept of freedom of religion in the United States, which I think is foundational of the Constitution."